Maruthi Babu Rao Jadhav, Perinthalmanna V. DCIT, Calicut

MA 71/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9684 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 07-12-2012
• Assessment Year: misc
• Appeal Filed On: 21-08-2012
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM M.P. NO. 71/COCH/2012 (ARSG. OUT OF IT(SS)A NO. 01/COCH/2006 ASSESSMENT YEARS : MARUTHI BABU RAO JADHAV, PROPRIETOR,DHANALAKSHMI REFINERIES, SHANTHAPURAM LODGE, CALICUT ROAD, PERINTHALMANNA. [PAN: AGNPJ 4164F] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, CALICUT. (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) ASSESSEE BY SHRI SHAJI POULOSE, REVENUE BY SMT. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 07/12/2012 DATE OF PRONOUNCEMENT 07/12/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS MISCELLANEOUS PETI TION REQUESTING THE BENCH TO RECALL THE ORDER DATED 05-10-2010 PASSED BY THE CO-ORDINATE BE NCH OF THE TRIBUNAL EX-PARTE. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T THE ASSESSEE AS WELL AS THE DEPARTMENT HAD PREFERRED APPEALS BEFORE THE TRIBUNA L CHALLENGING THE ORDERS PASSED BY THE LD. CIT(A). THE ASSESSEES APPEAL WAS INITIALL Y DISMISSED FOR WANT OF PROSECUTION ON 07-09-2009 AND, ON AN APPLICATION FILED BY THE ASSE SSEE, THE SAID ORDER WAS RECALLED BY THE TRIBUNAL, VIDE ITS ORDER DATED 17-05-2010. THE REAFTER, THE ASSESSEE WAS UNDER THE IMPRESSION THAT THE TRIBUNAL WOULD BE HEARING BOTH THE APPEALS, I.E. THE APPEAL OF THE ASSESSEE AS WELL AS OF THE REVENUE TOGETHER. HOWEV ER, THE ASSESSEES APPEAL WAS DISMISSED EX-PARTE FOR WANT OF PROSECUTION ON 05-10 -2010 AND THE SAID FACT DID NOT M.P. NO.71/COCH/2012 2 COME TO THE NOTICE OF THE ASSESSEE. THE APPEAL FIL ED BY THE DEPARTMENT WAS DECIDED ON 17-02-2012. SINCE THE ASSESSEE DID NOT RECEIVE ANY ORDER ON THE APPEAL FILED BY HIM, HE MADE FURTHER ENQUIRIES AND IT CAME TO LIGHT THAT THE ASSESSEES APPEAL WAS DISMISSED EX-PARTE ON 05-10-2010. THEREAFTER THE A SSESSEE HAS FILED THIS PETITION SEEKING RECALL OF THE SAID ORDER. ACCORDINGLY, THE LD. COUNSEL SUBMITTED THAT THERE WAS NO WILFUL NEGLIGENCE ON THE PART OF THE ASSESSEE AN D ACCORDINGLY PRAYED THAT, IN THE INTEREST OF NATURAL JUSTICE, THE IMPUGNED ORDER MAY BE RECALLED. 3. ON THE OTHER HAND, THE LD. DR SERIOUSLY OBJECTED TO THE PLEA MADE BY THE ASSESSEE. THE LD. DR POINTED OUT THAT THOUGH THE AS SESSEES APPEAL WAS DISMISSED EXPARTE ON 07-09-2009, YET IT WAS RESTORED BACK AT THE REQUEST OF THE ASSESSEE. THEREAFTER, THE ASSESSEE SHOULD HAVE BEEN VIGILANT IN PROSECUTING THE APPEAL. SINCE HE DID NOT PURSUE HIS APPEAL, THE SAME WAS DISMISSED F OR SECOND TIME BY THE TRIBUNAL. THE ASSESSEE COULD HAVE ASCERTAINED THE FACT WHILE DEFENDING THE APPEAL FILED BY THE REVENUE. ACCORDINGLY, THE LD. DR SUBMITTED THAT T HERE WAS INTENTIONAL FAILURE ON THE PART OF THE ASSESSEE TO PROSECUTE HIS APPEAL AND AC CORDINGLY OBJECTED TO THE PLEA MADE BY THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. ADMITTEDLY, THE APPEAL OF THE ASSESSEE WAS ORIGINALLY DISPOSED OF E X-PARTE ON 07-09-2009 AND THE SAME WAS RECALLED ON 17-05-2010. THE ASSESSEE, HOWEVER, FAILED TO PROSECUTE THE SAME BEFORE THE TRIBUNAL AND HENCE, THE TRIBUNAL AGAIN D ISMISSED THE APPEAL EX-PARTE ON 05- 10-2010. IT WAS EXPLAINED TO US THAT THE ASSESSEE WAS UNDER THE IMPRESSION THAT HIS APPEAL WILL ALSO BE HEARD ALONG WITH THE APPEAL FIL ED BY THE REVENUE. HOWEVER IT IS NOT KNOWN WHETHER THE ASSESSEE MADE ANY REQUEST FOR CLU BBING OF APPEALS. THE ASSESSEE MAY NOT BE WELL-VERSED WITH THE LEGAL PROCEDURES, Y ET THE PROCEDURE WITH REGARD TO CLUBBING OF APPEALS COULD HAVE BEEN POINTED OUT TO HIM BY HIS COUNSEL. NORMALLY, THE TRIBUNAL WOULD LIKE TO CLUB THE APPEALS FILED BY TH E RIVAL PARTIES AGAINST THE VERY SAME ORDER, IF THE RELEVANT FACT IS BROUGHT TO THE NOTIC E OF THE BENCH. IN THE INSTANT CASE, IT IS NOT KNOWN AS TO WHETHER THE DEPARTMENT HAD BROUGHT THE FACT OF AVAILABILITY OF CROSS M.P. NO.71/COCH/2012 3 APPEALS TO THE NOTICE OF THE TRIBUNAL. HENCE, IN OUR VIEW, THERE IS SOME MERIT IN THE PLEA MADE BY THE ASSESSEE. 5. HOWEVER, AS SUBMITTED BY THE LD. DR, IT IS THE R ESPONSIBILITY OF THE ASSESSEE TO BE VIGILANT WHILE PROSECUTING THE APPEAL FILED BY H IM. AT THE SAME TIME, IN OUR VIEW, NO PREJUDICE WOULD BE CAUSED TO THE DEPARTMENT, IF THE APPEAL IS RECALLED AND RE-HEARD AGAIN. IN FACT, IT WOULD PROMOTE THE CAUSE OF JUST ICE. SINCE THERE WAS SOME LETHARGIC BEHAVIOUR ON THE PART OF THE ASSESSEE IN PROSECUTIN G HIS APPEAL, WE ARE OF THE VIEW THAT THE TRIBUNAL SHOULD RECALL THE ORDER ONLY ON TERMS. ACCORDINGLY, THE ASSESSEE IS DIRECTED TO PAY COST OF RS.5000/- ON OR BEFORE 31-12-2012 TO THE DEPARTMENT, WHICH SHOULD BE DEPOSITED IN THE ACCOUNT IN WHICH THE TRIBUNAL F EES ARE PAID. ACCORDINGLY, SUBJECT TO THE PAYMENT OF COST STATED ABOVE, BY EXERCISING THE POWER VESTED UNDER THE PROVISO TO RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963, W E RECALL THE ORDER DATED 17-05-2010 (REFERRED SUPRA) AND DIRECT THE REGISTRY TO POST TH E APPEAL FOR HEARING ON 10 TH JANUARY 2013. THE ASSESSEE IS DIRECTED TO FURNISH THE EVID ENCE OF PAYMENT OF COST STATED ABOVE BEFORE THE DATE OF HEARING TO THE REGISTRY. SINCE THE DATE OF HEARING IS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES, THEY MAY NOTE THAT THE REGISTRY SHALL NOT ISSUE ANY SEPARATE NOTICE OF HEARING TO THEM, I.E., THIS ORDER ITSELF SHALL ALSO BE TAKEN AS THE NOTICE OF HEARING. 6. IN THE RESULT THE, THE MISCELLANEOUS PETITION FI LED BY THE ASSESSEE IS ALLOWED. PRONOUNCED ACCORDINGLY ON 07-12-2012 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 7 TH DECEMBER, 2012 GJ M.P. NO.71/COCH/2012 4 COPY TO: 1. MARUTHI BABU RAO JADHAV, PROPRIETOR,DHANALAKSHMI REFINERIES, SHANTHAPURAM LODGE, CALICUT ROAD, PERINTHALMANNA. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL C IRCLE, CALICUT. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOCH I. 4.THE COMMISSIONER OF INCOME-TAX, CENTRAL KOCHI 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN